Who holds the right of preemption when a share is bequeathed, but the legatee has not yet accepted the bequest, and the share is sold from the estate?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
The established opinion is that the right of preemption belongs to the heirs. This is because the bequeathed property does not transfer ownership to the legatee until acceptance occurs, which has not taken place, meaning the share remains the property of the heirs. Consequently, the heirs possess the right to claim preemption.
Supporting text
An alternative view suggests that the right belongs to the legatee if ownership is considered to transfer immediately upon death. Upon acceptance, the legatee can then claim the right because it is established that ownership belonged to them, making the sale occur within their ownership stake. However, the right cannot be claimed before acceptance because ownership is not confirmed until acceptance; if accepted, ownership is confirmed, and if rejected, it reverts to the heirs. Another possibility suggests the heirs have the right because the default assumption is non-acceptance, thus preserving the right with them. Furthermore, the legatee can accept and then claim, unlike the heir who cannot unilaterally establish ownership for himself or another.